Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Ltd

Novartis Pharmaceuticals Australia Pty Ltd (the applicant) brought proceedings against Bayer Australia Ltd (the respondent) regarding the latter's conduct in promoting its new drug, Eylea, which is used for the treatment of neovascular (wet) age-related macular degeneration (AMD). Both Eylea and the applicant's drug, Lucentis, were prescription-only medicines that were in direct competition with each other and were listed on the Schedule of Pharmaceutical Benefits. The applicant alleged that the respondent's conduct, which included a promotional campaign, was misleading or deceptive, or likely to mislead or deceive, in contravention of section 18 of the Australian Consumer Law. The matter was heard by the Federal Court.

The court was required to determine whether the respondent's conduct conveyed the pleaded representations, whether those representations were misleading or deceptive or likely to mislead or deceive, and whether the applicant's loss of sales was caused by the respondent's representations. The court also had to assess the extent of any loss, and the relevance of the dominant message conveyed by the respondent's promotional campaign.

The court found that the respondent's conduct conveyed the pleaded representations and was misleading or deceptive. The court rejected the argument that the dominant message of the promotional campaign was not misleading, as the court found that the representations made by the respondent were likely to mislead or deceive. The court held that the applicant's loss of sales was caused by the respondent's representations, and damages should be calculated as per Mr Moore’s scenario 2 using the historical loss figure but with future loss limited to the end of December 2013. The court did not include a sum for pre-judgment interest. The court ordered the parties to identify which parts of the reasons should not be published due to confidentiality, and to agree on the figure to be included in a particular paragraph of the reasons. The matter was stood over for four weeks to allow the parties to do this and to file submissions regarding costs. The proceedings were listed for the making of final orders.